IN THE CASE OF:	  

		BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20140010977 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his under other than honorable conditions discharge. 

2.  The applicant states he was discharged for being absent without leave (AWOL) for 62 days.  He needs the discharge upgraded so he may acquire benefits.

3.  The applicant does not provide any evidence. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.



2.  The applicant enlisted in the Regular Army on 27 May 1960.  He completed basic combat and advanced individual training and he was awarded and held military occupational specialty 310.00 (Field Communications Crewman). 

3.  He departed his unit in an AWOL status from 1 to 21 September 1960, until he was apprehended and confined by military authorities.  However, he departed in an AWOL status again from 27 September to 11 October 1960, until he returned to military control.  

4.  On 1 November 1960, he was convicted by a summary court-martial of the above two specifications of being AWOL.  He was sentenced to a forfeiture of pay and a reduction to private/E-1.  The convening authority approved his sentence. 

5.  He again departed his unit in an AWOL status from 3 to 13 November 1960, until he returned to military control.  

6.  On 15 November 1960, the applicant underwent a mental status evaluation.  He was found fit for duty with no disqualifying factors.  

7.  On 16 November 1960, the applicant's immediate commander requested the applicant be discharged from military service under the provisions of Army Regulation 635-208, paragraph 3a, for unfitness, citing the applicant's prior misconduct to include his court-martial conviction, multiple AWOL offenses, a pattern of irresponsibility, absence of respect to authority, and a bad attitude.  

8.  On 16 November 1960, the applicant acknowledged he had been offered the opportunity to consult with counsel but he chose not to do so.  Nevertheless, his commander advised him of the contemplated separation action.  He also acknowledged he understood if an under other than honorable conditions discharge was issued to him, he would be deprived of many or all rights as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  He waived his right to a board of officers, and to appear before a board of officers, and declined to submit a statement on his own behalf.

9.  On 17 November 1960, the immediate commander initiated separation action against him under the provisions of Army Regulation 635-208 for unfitness.  His intermediate commander recommended approval,



10.  On 12 December 1960, the Commanding General/separation authority, U.S. Army Caribbean, Fort Buchanan, PR, approved the applicant's elimination from the Army under the provisions of Army Regulation 635-208 and directed that he be furnished an Undesirable Discharge Certificate.  On 13 December 1960, the applicant was accordingly discharged.  

11.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time confirms he was discharged in accordance with Army Regulation 635-208 and issued an Undesirable Discharge Certificate.  This form further shows he completed 4 months and 25 days of creditable active military service and he had 52 days of lost time.

12.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation. 

13.  Army Regulation 635-208, in effect at the time, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities; (b) sexual perversion; (c) drug addiction; (d) an established pattern of shirking; and/or (e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, provides for the separation of enlisted personnel from the Regular Army.  

	a.  Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant's records reveal a disciplinary history which includes multiple instances of being AWOL, one court-martial convictions, and a history of negative counseling.  Accordingly, his immediate commander initiated separation action against him.  His discharge was processed in accordance with applicable regulations and all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

3.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Each case is considered on its own merits.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   ___X____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20140010977



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ABCMR Record of Proceedings (cont)                                         AR20140010977



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